EVMs Non-Tamperable, Demand For 100% VVPAT Verification ‘Regressive’: Election Commission Tells Supreme Court

“The electronic voting machines are non-tamperable, both due to technological measures, and also due to strict administrative and security procedures laid out by ECI, whereby no access to EVM/VVPAT is allowed to any unauthorised person. Hence, these are protected from any tampering or manipulation whether before the polls, or during the polls, or after the polls, in storage or transportation from manufacturer to the state or district or vice versa, or when transported from one state to another.”

The election commission has opposed a plea seeking complete verification of EVM data against voter-verifiable paper audit trail (VVPAT) records, saying that it was yet another attempt to cast doubt over the functioning of EVMs and VVPATs on ‘vague and baseless’ grounds. Their recent affidavit was filed in response to a public interest litigation (PIL) petition filed by the non-governmental organisation Association for Democratic Reforms, which is currently being heard by a bench headed by Justice Sanjiv Khanna.

In their reply, the election commission has argued that counting all VVPAT paper slips manually, as suggested, would not only be labour and time-intensive, but also be prone to ‘human error’ and ‘mischief’. This would essentially be a retrogression to the paper ballot system, the commission has alleged –

“Manual counting of this scale will also be prone to human error and mischief, leaving aside the drudgery of days of counting small slips of paper potent with possibilities of mischievous false narratives on social media, round after round of counting across the country…The petition is essentially suggesting going back to paper ballot system.”

Besides praying for a more robust system of cross-verification between EVM and VVPAT tallies, the petitioner has also asked for a declaration by the court that every voter has the fundamental right to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’, praying for directions to affect appropriate changes to enforce this ‘fundamental right’. No such fundamental right exists, the election commission has categorically said in its affidavit. The poll panel has also disputed the petitioner’s claim that its recent plea sought to give full effect to the purport and object of the 2013 judgement in Subramanian Swamy v. Election Commission of India, in which the Supreme Court held ‘paper trail’ to be an indispensable requirement of free and fair elections and directed the ECI to introduce the VVPAT mechanism - 

“The petitioner has incorrectly relied on the ratio of Subramaniam Swamy, which is not applicable in the present case, because this court has not given any direction for cross verification of the count in EVMs with VPATs. The petition was only about the introduction of paper trail to facilitate the voter to verify their vote in the form of VVPAT slip for fullest transparency in the system. In other words, Voter Verifiable Paper Audit Trail or VVPAT is essentially introduced for the purpose of the voter to verify the vote cast in the form of a VVPAT slip at the time of voting in the polling station, and not with the objective of cross-verification or counting of slips at a later stage.”

The commission has further pointed out that in 2019, in response to a ruling of the Supreme Court on a plea filed by 21 opposition leaders including former Andhra Pradesh chief minister N Chandrababu Naidu, the number of random polling stations in each assembly constituency or each assembly segment of a parliamentary constituency subject to mandated verification of paper audit trail (PAT) slips was enhanced from 1 to 5. The present system of random verification of five VVPATs per assembly constituency or segment achieved a state of 'near-certainty', the commission has told the court, relying on the margin of sampling error calculated by the Indian Statistical Institute (ISI) -

“The Indian Statistical Institute recommended that undertaking slip verification for 479 EVMs and VVPATs was sufficient to indicate a confidence level of 4 Sigma or 99.9936 percent…The prevalent practice of testing of five randomly chosen EVM-VVPAT systems per assembly constituency or segment translates to a total of 20,600 randomly chosen systems. This is far beyond the recommendation of the ISI, and the Election Commission of India’s own earlier practice of verification of one system per assembly constituency or segment which in itself was much in excess to the statistically recommended figure. As per the present sampling mandate of five randomly chosen EVM-VVPAT systems per assembly constituency or segment, the proportion of error in the entire population of EVM-VVPAT systems used in that election is less than 0.2 percent with 99.9998479 percent confidence level which is much higher than 4 sigma and near-certainty. Complying with the rigour of statistical sciences, the present system of random verification of five VVPATs per assembly constituency or segment achieves a state of near-certainty.”

The election commission has revealed that ballot slips of 38,156 randomly selected VVPATs have been tallied till date with the electronic counts of their control unit (CU), asserting that not a single case of transfer of vote meant for one candidate to another has been detected. “Differences in count, if any, have always been traceable to non-deletion of mock poll votes from the CU or non-removal of mock poll slips from the VVPAT,” the affidavit states. It further adds –

“Well-established protocols are in place to handle such eventualities in a transparent manner. Therefore, the present mandate of counting of five randomly selected VVPATs for the purpose of cross verification is on a sound statistical footing and ensures highest degree of transparency and confidence…Any possible increase in the number of randomly chosen VVPATs that are to be verified from the existing number of five VVPATs per assembly constituency or assembly segment will pose tremendous administrative challenges that may not be commensurate with the potential improvements that may be achieved in the statistical confidence levels. Given the fact that till now there has been no discrepancy observed in the VVPAT slip count, the plea appears to be in nature of finding a solution wherein no problem exists in the first place…VVPAT is essentially an ‘audit trail’ for the voter to instantaneously verify their vote cast in the ballot unit, which are being cross-verified on a statistically robust sampling basis according to the directions of the Supreme Court. Therefore, to press forward a ground for 100 percent verification of VVPAT slips is a regressive thought and tantamount only to going back indirectly to the days of manual voting using ballot system.”

Last month, the Justice Khanna-led bench voiced its reservations about the non-profit’s plea. Justice Khanna asked Advocate Prashant Bhushan whether the petitioner-association was being overly suspicious. Despite encountering scepticism from the bench, the counsel pressed for more extensive cross-verification of electronic voting machines (EVM) data against voter-verifiable paper audit trail (VVPAT) records, highlighting that only around two percent of EVMs were currently cross-verified. In response to this, Justice Khanna pointed out practical limitations faced by the election commission. Ultimately, the court declined to issue notice at that stage but instructed the counsel to serve a copy of the petition to the standing counsel of the Election Commission of India, before adjourning the hearing.

This week, the court reiterated its earlier concern over the Association for Democratic Reforms being ‘overly suspicious’. The court also revealed that it was not convinced of the urgency of the matter, particularly in view of the counter-affidavit filed by the election commission, while adjourning the matter until November.

The Association for Democratic Reforms, jointly with another non-profit Common Cause, had moved the Supreme Court in 2019, seeking an investigation into alleged discrepancies in the 17^th Lok Sabha elections held in the same year. While this petition prayed for the EVM count to be tallied against the record of the register, the recent petition filed by the Association for Democratic Reforms sought a verification of EVM data against VVPAT records.

The court had issued notice in the 2019 petition and directed it to be tagged with a similar petition filed by Trinamool Congress legislator Mahua Moitra seeking the publication of details relating to voter turnout and final vote counts in the 2019 elections.

Case Details

Association of Democratic Reforms v. Election Commission of India & Anr. | Writ Petition (Civil) No. 434 of 2023